People v. Mora CA1/3 ( 2016 )

Filed 3/1/16 P. v. Mora CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A136324
ERIC STEWART MORA,
(Alameda County
Defendant and Appellant. Super. Ct. No. C163698)
This is an appeal from final judgment following the conviction by jury of
defendant Eric Stewart Mora for second degree murder. Defendant identifies a multitude
of purported errors during his trial in seeking reversal of this judgment, including thirteen
separate incidents of prosecutorial misconduct, erroneous admission of hearsay and other
evidence, erroneous exclusion of third-party culpability evidence and impeachment
evidence, several instances of ineffective assistance from counsel, and violation of his
right to a public trial. For reasons set forth below, we agree several errors occurred
during trial, at least one of which was to defendant’s prejudice. We therefore reverse the
judgment and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2010, defendant was charged by information with committing second
degree murder in violation of Penal Code section 187, subdivision (a). Defendant’s
alleged victim was Cynthia Alonzo (also known as Linda Alonzo), his girlfriend of about
two years. Alonzo disappeared on Thanksgiving Day 2004, and was never seen or heard
1
from again. Although presumed dead long before defendant’s arrest in 2007, Alonzo’s
body has never been found.
Trial by jury commenced on January 3, 2012. The trial, which lasted several
weeks, produced the following evidence.
In 2004, both Alonzo and defendant were living in Oakland. Alonzo lived in an
apartment on Martin Luther King Boulevard with her daughter, Tishone Banks,
granddaughter Shaquila and son, Anthony Alonzo. Defendant, in turn, owned and lived
in a house on Brookside Avenue with his brother, Mark Mora (Mark). Mark’s girlfriend,
Sybil Straughter, also lived in the house, and Alonzo sometimes stayed there. Mark did
not get along with Alonzo, and preferred that she not come to their house, even
encouraging defendant to get a restraining order against her.
Defendant had a more or less tumultuous relationship with Alonzo. Even during
relatively peaceful periods in their relationship, defendant and Alonzo were “constant[ly]
arguing.” One of Alonzo’s longtime neighbors, Roderick Stanley, testified that he had
once seen defendant force Alonzo into his car after telling her, “Bitch, get in the car.”
The couple appeared to be fighting. Prior to this incident, Alonzo had told Stanley she
was “tired” of defendant.
On Thanksgiving Day, November 25, 2004, Alonzo failed to appear for a family
gathering at her mother’s house in San Francisco. Alonzo had close familial ties and,
prior to her disappearance, remained in regular contact with her mother, Corrine Wallace,
and her five children, Tishone Banks, Terresa Jones, Anthony Alonzo, Tyrone Jones, and
Lashawn Jones. 1 Alonzo nearly always attended family gatherings during the holidays at
her mother’s house, and Thanksgiving was her favorite holiday. For this particular
holiday gathering, Alonzo had told her mother and children she would be there.
Around the time of the Thanksgiving holiday, Alonzo and defendant were
experiencing a “rocky” period in their relationship. Alonzo was also having problems
with Linda Haymon, the mother of defendant’s three children. Haymon and defendant
1
Alonzo had several children, three with the “Jones” surname. For clarity, we refer
to her children by their first names only, intending no disrespect.
2
had been together nearly 30 years when she discovered defendant’s relationship with
Alonzo by listening to his voicemails. Until Haymon made this discovery, defendant
mostly resided at her East Oakland house. However, after Haymon confronted defendant
and told him to choose between her and Alonzo, defendant chose Alonzo and began to
mostly reside at his house on Brookside Avenue.
Nonetheless, at some point, Haymon and defendant reunited, causing Alonzo to
break off her relationship with defendant. Their break-up did not last, however.
According to Terresa, Alonzo’s daughter, defendant owed Alonzo money for work she
had done for him, and she did not think Alonzo would leave defendant until he paid up.
Alonzo had also told Terresa that Mark and Straughter wanted Alonzo and defendant to
break up because they were concerned that defendant had promised to buy her a house
with money he expected to inherit. Terresa was once involved in a physical altercation
with Alonzo, Mark and Straughter, during which Mark hit Alonzo in the face and
Straughter threw water on Alonzo, prompting Terresa to hit Mark with a frying pan.
On November 20, 2004, Terresa could not get in touch with her mother. She
eventually went to defendant’s Brookside house to ask whether he had seen Alonzo.
Defendant, appearing angry and frustrated, told Terresa that they had a big argument, and
that Alonzo had left in his car. The next day, November 21, Terresa called defendant to
inquire as to Alonzo’s whereabouts. Defendant told Terresa that Alonzo had gone to the
store. He then added: “I just want you to explain to me what your mother [sic]
personality is because I can’t seem to understand what kind of person she is.” Terresa
told him that, after two years of dating Alonzo, he should know her personality, and that,
if they could not stop fighting, they should not be together. Defendant responded that he
loved Alonzo and wanted their relationship to work. He also told Terresa that he
intended to accompany Alonzo to her mother’s house on Thanksgiving.
Later that day, Terresa was able to get in touch with Alonzo, who was upset that
Terresa had told defendant they should break up. Terresa told Alonzo that she wanted to
protect her, to which Alonzo responded that she need not worry, that their future would
be brighter, and that she intended to “start taking care of her business in the right way.”
3
Alonzo then confirmed that she would see both Terresa and Lashawn at Wallace’s house
on Thanksgiving. However, Alonzo never appeared at her mother’s home, and neither
did defendant. Her family, surprised that Alonzo would miss the holiday gathering, tried
unsuccessfully to reach her.
Two of Alonzo’s downstairs neighbors, Dorothy Easley and Katrina Hall, did see
Alonzo on Thanksgiving Day 2004. According to the women’s testimony, Alonzo
stopped by their apartment around 2:00 p.m., stating that she was going to get ready for a
family gathering at her mother’s house, and that her boyfriend, defendant, whom Hall had
met, would be taking her there. Alonzo later stopped by again to say goodbye. She was
carrying a small backpack with her. Easley and Hall then saw Alonzo get into
defendant’s blue Mercedes with him.2
Mark testified that he spent Thanksgiving Day 2004 at his grandmother’s house
with Straughter and his daughter. He did not see defendant until returning home later that
evening. Defendant was in his downstairs bedroom, and Mark knocked on the door to
tell him they had brought him dinner. Defendant told Mark to leave it outside the door,
which Mark did. Later, when Mark asked about Alonzo, defendant told him he had
dropped her off at a liquor store two or three days before Thanksgiving.
The day after Thanksgiving, Terresa stopped by Alonzo’s house, but she was not
there. When Terresa went into Alonzo’s room, she found a big mess with clothes
everywhere. Terresa could not find the small backpack her mother generally carried with
her with makeup and her Electronic Benefits Transfer (EBT) card, which holds food
stamps and a cash benefit. Terresa did find, however, her mother’s wallet with her
identification, social security card and debit card in its usual place under the mattress.
2
Hall and Easley testified at the preliminary hearing that they last saw Alonzo on
November 24, 2004, the day before Thanksgiving. In addition, Hall testified at the
preliminary hearing that she did not see Alonzo get into defendant’s car. Hall explained
these discrepancies by the fact that she was afraid to tell the truth at the preliminary
hearing because she had been threatened by several people, including two men who came
to her house and told her: “You best not say anything because if you do, you’re going to
end up like her.”
4
Later that day, Terresa went with her sister, Tishone, to defendant’s home on
Brookside Avenue. Defendant told the women he had not seen their mother for two
weeks. Terresa described defendant’s demeanor as “very nervous,” “shaking,” and
“weird.” “He was real fidgety. He was constantly moving his hands, and you could see
his hands were shaking.” When Terresa reminded defendant about their phone
conversation about a week ago during which he told her he had just seen Alonzo,
defendant replied: “I told you I haven’t seen your mom in two weeks.” Defendant then
told Terresa he had last seen Alonzo a week ago when he dropped her off at a liquor
store. Defendant eventually let Terresa enter his house, where she went to his bedroom
and noticed that a large rug was missing and that a table had been moved. Terresa also
noticed furniture missing from the living room. Defendant did not appear concerned with
Alonzo’s whereabouts, and did not offer to help look for her. Terresa told defendant she
believed he was lying and intended to call the police, which defendant discouraged.3
Later, Terresa had her brother, Tyrone, meet them at defendant’s house, and a
confrontation occurred with Mark and defendant. According to Mark, Tyrone had a gun
and threatened defendant. At some point during the confrontation, Mark told Terresa and
her brother to “[a]sk [defendant], he knows where your mom is at. It’s not me, it’s
[defendant]. He knows where your mom is at.” Defendant then replied: “Mark, don’t
tell them that.”
After that day, Terresa returned to defendant’s house about 15 times looking for
her mother. One time, in early December 2004, defendant told her: “Holly Rock came
and picked [Alonzo] up from his house.” Finally, on December 6, 2004, Terresa called
the police to report her mother missing. Officer Jacqueline Shaw of the Oakland Police
Department (the department) responded and, at Terresa’s request, went to defendant’s
house to inquire about Alonzo. Defendant, appearing “very nervous” and “agitated,” told
Officer Shaw: “She’s not here.” After inviting Office Shaw and her partner to enter,
3
Alonzo’s mother also described defendant as unconcerned about Alonzo’s well-
being or trying to find her. Defendant told Wallace about two or three weeks after
Thanksgiving 2004 that he did not know Alonzo’s whereabouts.
5
defendant “started rambling about things that I wasn’t asking. Like he was providing
information anticipating a question that I was going to ask. You know, his hands were
very fidgety . . . as I looked at his hands, I noticed scratches on the back of his hands. It
was more of the fact that he was fidgety and just seemed agitated that I took to be
nervous.”4
Defendant told Officer Shaw he had not seen Alonzo since two days before
Thanksgiving, when he had dropped her off at 24th and Martin Luther King Boulevard in
Oakland. He acknowledged that, at the time, they had been arguing, and that they were
out of contact because their relationship had not been going well. After Officer Shaw’s
partner determined defendant was on probation with a search condition, they handcuffed
him and placed him in their vehicle. During their subsequent search of the premises,
Officer Shaw noticed a discolored patch of the living room floor that did not appear to
have been sanded. Other parts of the property appeared to be under construction. In one
of defendant’s vehicles, they found a “large sharp looking” knife-like object. When the
officers released defendant from their vehicle, he was “very, very sweaty” and “seem[ed]
very, very nervous.” Officer Shaw then noticed a “really nasty cut” in the web of his
hand. When she commented on it, defendant stated that he “had cuts all over. Look at all
the work we’re doing [on the house]. Of course I have cuts.” He then “rambl[ed] out real
quickly” that “[he] cut it on some glass that [he] threw away in the trash can.” When
Officer Shaw asked whether she could see the glass, defendant replied it was “long
gone.”
Officer Daniel Castanho, a missing-persons investigator for the department, filed
the original missing-persons report for Alonzo and entered her information into a national
database. Officer Castanho also created a flyer with Alonzo’s photograph and
information, which was broadly distributed to the media, law enforcement, and
4
According to Officer Shaw, the scratches on defendant’s hands “were kind of
jaggedy, fairly superficial in terms of depth into the skin but kind of wide in nature. It
was almost like they were cat scratches or wider. I would think they would look like
fingernail scratches. That was my impression.”
6
elsewhere. On December 8, 2004, his partner, Officer Steve Bukala, was assigned to the
case. The two officers went to defendant’s house. Defendant, appearing “very nervous”
and “sweating, talking really fast,” came outside to meet them. The officers described his
behavior as “odd,” looking around, shaking, and his voice breaking. At the same time,
defendant did not appear to be concerned about Alonzo, whom he said he had last seen
“two, three, four, five days, let’s call it four days before Thanksgiving,” when he dropped
her off at Captain’s Liquors on 24th and Martin Luther King Boulevard at 10:00 a.m.
Defendant described his relationship with Alonzo as based on “drugs and sex and that
was about it.”
On December 9, 2004, defendant rented a kit for sanding floors. The next day, he
returned the kit without having used the finer-grit sand paper. John Villarosa, who rented
the kit to defendant, testified that, when a floor is sanded with only rough-grit sand paper,
sanding lines remain on the floor and the wood grains will more quickly absorb dirt.
Photographs taken of defendant’s floor indicated the floor had retained some of its finish
and needed more sanding. In addition, criminalist Todd Weller testified that, if you sand
a floor enough, evidence of blood will be removed. Haymon testified, however, that the
floors in defendant’s house were sanded to prepare the house for sale.
Also on December 9, 2004, a news story regarding Alonzo’s disappearance aired,
providing a phone number for persons with relevant information. An anonymous person
thereafter called Terresa and told her that, if she wanted to find her mother, she should
look at the Lake Temescal children’s playground, which was about a block from
defendant’s house. Terresa visited the park the next day with several family members
and friends, as well as Alonzo’s dog. The dog found a backpack in the mud that
appeared similar to one belonging to Alonzo.5 Terresa later called the police, who
responded with a search team that included Officer Bukala. By the time the police
arrived, however, the family had moved the backpack to a picnic table. The police used
dogs to search an area of “disturbed ground” near the parking lot, but could not find
5
Officer Bukala testified that Terresa told him her brother, Tyrone, found the
backpack, not her dog.
7
anything of significance. Officer Bukala looked at the backpack, but found “no
distinguishing marks at all on it.” No forensic testing was ultimately done on the
backpack.
On December 10, 2004, Officer Bukala returned to defendant’s house at about
8:00 a.m. He could hear a machine that sounded like a floor sander and could see
defendant sanding the living room floor. When defendant answered the door, he
appeared to be covered in sawdust. Officer Bukala described the sanding work as “pretty
sporadic.” Defendant told Officer Bukala during the visit that he wanted to clear up a lie
he had told the previous day. Defendant then explained he did not drop Alonzo off at
24th and Martin Luther King, but, rather, “over off of Athens,” where she was going to
buy drugs. He misspoke earlier because he did not want to be a “snitch.” However, he
continued to appear unconcerned about Alonzo, and did not indicate he had tried to call
or locate her.
Officer Bukala subsequently pursued other leads. For example, Officer Bukala
followed up on information he received that Alonzo had filed two police reports a few
weeks before Thanksgiving. He also learned Alonzo had applied for relocation funds
from a local organization called Victims of Violent Crime. Further, Officer Bukala
obtained the transaction history of Alonzo’s EBT cards. A later investigation into the
transaction histories for both defendant’s and Alonzo’s EBT cards revealed that, between
April and October 2004, both of their cards were used several times within moments of
each other at Captain’s Liquors. In addition, someone made balance inquiries, which
requires knowledge of the EBT card number and PIN number, on Alonzo’s EBT card
four times in December 2004, after her disappearance.6 Officer Bukala tried to locate
surveillance video from Captain’s Liquors that would reveal who made these inquiries,
but surveillance of the store’s EBT machine was not available. Finally, Officer Bukala
also contacted several of Alonzo’s neighbors and checked local hospitals, but could not
generate any leads.
6
Alonzo’s EBT card was last used to purchase food on November 23, 2004, at
4:23 p.m., at Captain’s Liquors.
8
At some point toward the end of December 2004, Officer Bukala lost track of
defendant. Defendant did not appear for an appointment with him scheduled for
December 14, 2004. He surveyed defendant’s house during the last week in
December 2004, but never saw him. Neither Mark nor Straughter knew his whereabouts.
Ultimately, in late December 2004, Officer Bukala began transitioning the case to
Sergeant Derwin Longmire, a homicide detective. Together, they obtained a search
warrant, signed on December 26, 2004, to search defendant’s house and seven vehicles
linked to him by DMV records. This search occurred while both Mark and Straughter
were home, and revealed the following evidence. From one of defendant’s cars, the
officers found a large knife with 10-inch blade and leather sheath, as well as a canvas bag
with paper bands of the sort used to sort money with the numbers “8,000” and “2,000”
written on them. In defendant’s blue Mercedes, they noticed missing floor mats and
carpeting from both sides of the front seat, missing carpeting or upholstery from the area
behind the seats, and missing carpeting from the trunk. Inside the house, they noticed the
main floors had been sanded in a “haphazard” and “very uneven” fashion. The floors in
defendant’s bedroom also appeared to have been sanded.
Criminalist Weller, who accompanied the officers, found a slip and two shirts in
the laundry room with blood stains, blood stains on a wall in defendant’s downstairs
bedroom, and blood stains on the door between defendant’s room and the laundry room.
The blood stains on the bedroom wall were both about 14 inches from the floor and one
was three inches long, while the other was one inch long. This bedroom wall was moldy
in places, and there were marks indicating the area had been wiped in a non-uniform way.
There was also a blue sheet hanging over one window, and there were bloodstains behind
the sheet hidden by mold. When sprayed with a chemical, Luminal, the wall gave a
“strong positive reaction,” likely indicating the presence of blood.7
7
Weller later testified that he found nothing about the pattern of sanding on the
floors in the main floor that indicated the sanding was intended to remove material from
any particular location.
9
After their search, Sergeants Longmire and Nolan interviewed Straughter and
Mark. Straughter told them she and Alonzo did not get along. According to Straughter,
defendant and Mark had taken out a $75,000 loan on their house in the Fall of 2004, and
Alonzo had told her she was going to get a share of defendant’s money. Whenever
Straughter inquired as to Alonzo’s whereabouts after Thanksgiving 2004, no one would
answer her. Neither Straughter nor Mark could provide an explanation for the blood
found by Weller in defendant’s bedroom, although Straughter did tell Longmire that
blood in the house could be explained by a home invasion in 2003, during which two
men pistol-whipped her, Mark, and their house guest. Mark, in turn, said he was
surprised and upset to learn the floors in their house had been sanded, insisting he played
no part in that decision.
The police later ran DNA tests on the blood-stained clothing items found in
defendant’s house. Blood on one shirt matched Alonzo’s profile,8 and blood on the other
shirt matched defendant’s profile.
Sergeant Longmire thereafter spent “weeks upon weeks upon weeks” looking for
defendant to no avail.9 Nonetheless, Sergeant Longmire continued to periodically survey
defendant’s house from 2005 to 2007 and, in early 2007, he noticed a realtor sign at the
house. Sergeant Longmire then learned through the realtor that defendant was in the area
and obtained an arrest warrant for him.
On February 22, 2007, defendant was arrested and then interviewed after waiving
his Miranda rights.10 During this interview, defendant initially denied having a wife,
girlfriend or children. He repeatedly referred to Alonzo as “that girl,” and indicated he
8
The shirt with Alonzo’s blood showed defendant as a secondary donor.
9
Sergeant Longmire had followed up on information from Officer Bukala that
Alonzo had filed two police reports and applied for victim relocation funds shortly before
her disappearance by talking to Sergeant Ferguson, but failed to generate any leads. He
acknowledged at trial that he did not know Alonzo’s application for relocation funds had
been granted on November 17, 2004, although this information was noted in Officer
Bukala’s missing-person report.
10
Miranda v. Arizona (1966) 384 U.S. 436.
10
met her through a man named Darryl White. Later, defendant said he had been going out
with Alonzo for a couple of months when she disappeared. Defendant acknowledged
Terresa came to his house looking for Alonzo, and insisted he had not seen Alonzo since
the “wintertime somewhere between Thanksgiving and Christmas” or between
September and October. Defendant said he had last seen Alonzo on Grove Street, near
her home. Later, defendant told him that he last saw Alonzo when dropping her off on
Athens Street “well before Thanksgiving.” At some point, Sergeant Longmire indicated
Alonzo was not still missing, to which defendant responded: “So she’s dead?” When
Sergeant Longmire confronted defendant with the fact that Alonzo’s blood had been
found in his bedroom, he denied knowing how this could have happened. Defendant
explained that he had left the area for Nevada “when things got hot because of [Alonzo’s]
disappearance.”
After defendant’s arrest, Sergeant Longmire obtained a warrant to search his house
and blue Mercedes. However, when Sergeant Longmire arrived at the house on
February 27, 2007, it was mostly empty. He then got warrants for both Mark and
defendant’s DNA. Subsequent testing revealed blood on the door between defendant’s
bedroom and the laundry room matched the DNA of both defendant and Mark (with
defendant identified as the donor of the higher of two blood stains on the door, and Mark
identified as the donor of the lower blood stain).
While defendant was in jail under arrest, recordings were made of his phone
conversations with Haymon. In one of these conversations, defendant insisted to
Haymon that he had sanded the entire floor, not just certain sections. He also insisted
knowing nothing about the presence of Alonzo’s blood in his house, telling Haymon it
was likely a police trick, rather than an actual fact.
The police also interviewed Diana Yonkouski, the realtor hired to sell Mark and
defendant’s house. Yonkouski first met Mark to discuss selling the house in Spring 2004.
At this time, she recommended doing some work on the house before putting it on the
market. In particular, she recommended painting the exterior. She did not, however,
recommend any specific work inside the house.
11
When Yonkouski later visited the house in November 2005, she noticed someone
had covered the vents around the bottom of the house, something she would never
recommend due to the need to ensure proper ventilation in this area. Also in 2005,
Yonkouski noted an “unusual odor” coming from underneath the house, and instructed
them to clean out the basement.
Yonkouski first met defendant in person at the house in 2006. Her handyman
submitted a proposal to paint the interior and refinish the floors on May 29, 2006, and the
house was then listed in November 2006. In the disclosures prepared for the buyer,
Yonkouski noted that two large holes had been dug in the sub-basement of the house,
which had been covered with boards. She described the larger of these holes as five feet
by three or four feet in width and two to three feet in depth. She also noted a large
concrete slab in the sub-basement that served no apparent structural purpose.
At trial, Yonkouski described a conversation with defendant during the 2006 home
inspection. He told her with a “little smirk” on his face that, when you put a certain
chemical on a body, it will disintegrate. Yonkouski could not recall what prompted
defendant’s comment, or what chemical he named. She did recall he made the comment
when they were standing in an unfinished storage area in the house. Sergeant Longmire
later testified that he did not recall Yonkouski telling him about defendant’s comment.
Also testifying at trial was Patrice Fluker, a former inmate who met defendant in a
holding cell at the Oakland jail in February 2007. Fluker later served time with defendant
at the Santa Rita jail. According to Fluker, defendant offered to compensate him for his
help using the telephone. Fluker had an advantage over defendant in getting phone
reservations due to his gang affiliation.
Fluker knew defendant had been charged with Alonzo’s murder, and had met
Alonzo once or twice through her daughter, Lashawn, who was his close friend.
Defendant asked Fluker to testify at his preliminary hearing that he had seen Alonzo on a
particular date in November 2004 in exchange for $1,000. Fluker agreed, telling
defendant that he would falsely testify that he was with Alonzo (and others) on
12
November 24, 2004, the day before Thanksgiving. He also agreed to testify that Alonzo
was, among other things, a prostitute, crack head, and scam artist.11
Fluker testified that defendant had repeatedly talked about Alonzo in the past tense
and referred to her as “the bitch.” Once, after defendant learned that police had found
Alonzo’s blood in his house, he told Fluker: “The bitch is still haunting me even from
her fucking grave.” When Fluker told defendant that police could use Luminal to find
blood, he responded: “Not with what I used.” He also told Fluker that the police had
searched his house with cadaver dogs, but had found nothing.
Later, Fluker saw defendant in a holding cell during defendant’s preliminary
hearing. Defendant told him that their concocted story about seeing Alonzo on
November 24th would not work in light of testimony from Alonzo’s neighbor. He asked
Fluker to instead testify that he saw Alonzo on November 25th, Thanksgiving Day.
Defendant also told Fluker that he had given the “evil eye” to a woman who had just
testified at his hearing, which made the witness cry.12
Ultimately, after being transported to court several different days for defendant’s
preliminary hearing, Fluker decided not to provide the false testimony.13 After telling
defendant his decision, he was brought to the court room to talk to defendant’s attorney.
Fluker told defense counsel he would not testify as planned because it was untrue. Fluker
was then visited by deputy district attorney, Casey Bates, and an investigator, who asked
why he had decided not to testify. Fluker acknowledged having concocted a false story
with defendant, and then changing his mind about telling it in court. Fluker later saw
11
According to Fluker, Lashawn’s girlfriend, Carla, told him she went to Alonzo’s
mother’s house for Thanksgiving 2004, and had fallen asleep there. Defendant
encouraged Fluker to say he had been with Alonzo, Lashawn, Carla and another person
on Thanksgiving, and to add the detail of Carla having fallen asleep to make his
testimony more realistic.
12
Other evidence reflected that Fluker and defendant were transported to court
together on September 5, 2007 for defendant’s preliminary hearing, and that Alonzo’s
neighbor, Easley, had cried on the witness stand that day.
13
At trial, Fluker explained that, had he testified as planned about Alonzo, he would
not have been able to face Lashawn.
13
defendant in a holding cell after continuing to be called for his preliminary hearing.
Defendant offered him $5,000 to testify to having seen Alonzo on November 25, 2004.
When Fluker asked defendant whether he killed Alonzo, defendant responded: “Yeah.”
Fluker, who had already been sentenced at the time of his meeting with Bates, did
not ask for or receive any compensation or leniency. Nor did Fluker ask for or receive
leniency when he later testified at the preliminary hearing for the prosecution (something
he had never done before). In fact, because he cooperated with the prosecution, Fluker
was disaffiliated from his gang and a “green light” was placed on him, meaning gang
members were supposed to attack him upon crossing his path. Ultimately, Fluker was
placed in protective custody in prison, and was stabbed several times. Out of concerns
for Fluker’s safety, the district attorney’s office helped him transfer his parole out of
Oakland. The district attorney’s office also gave him financial assistance to resettle
elsewhere, as well as financial assistance when he was released from custody until his
social security benefits resumed. Bates helped Fluker obtain a photograph of the
deceased mother of his children.
At trial, Bates confirmed Fluker did not initiate contact with his office, nor receive
anything of value in exchange for cooperating in defendant’s case. Bates decided to meet
with Fluker after seeing Fluker and defense counsel talking in the holding cell and then
being told by defense counsel that Fluker would no longer be called as a defense witness.
At their meeting, Fluker told Bates that defendant offered to pay him to falsely testify that
he had seen Alonzo in November 2004. Fluker was told by defendant, not Bates, that
Easley cried on the stand and that Easley and Hall had changed the date on which they
said they last saw Alonzo. Bates acknowledged later testifying on Fluker’s behalf at a
parole revocation hearing. He testified about the safety repercussions of Fluker’s
decision to cooperate with the prosecution in defendant’s case. Bates believed Fluker had
an expectation of receiving protection in exchange for testifying, but he did not ask for
leniency on Fluker’s behalf at the hearing.
Following closing arguments and instruction by the court, the jury deliberated for
three days. Finally, on February 28, 2012, the jury rendered its verdict, finding defendant
14
guilty of second degree murder. The trial court thereafter sentenced defendant to 15
years to life in prison. This timely appeal of the judgment followed.
DISCUSSION
Defendant raises numerous issues for review. Defendant contends the trial court
committed prejudicial error by: (1) infringing on his right to a public trial by imposing
certain restrictions on his daughter, Erica, during the course of trial; (2) excluding third-
party culpability evidence and related exculpatory evidence, including evidence that third
parties threatened Alonzo prior to her disappearance and used her EBT card after her
disappearance; (3) restricting defendant’s right to confront and cross-examine Fluker, the
jailhouse informant who testified that defendant admitted killing Alonzo and offered to
pay Fluker to give false testimony; (4) admitting two multiple hearsay statements,
including one relating to his purported admission of guilt; (5) declining to review
materials he sought from the prosecution for a possible Brady violation; 14 (6) admitting
evidence of his purported prior bad act pursuant to Evidence Code section 1109 without
the requisite foundational showing; and (7) excluding evidence impeaching Sergeant
Longmire. Defendant also seeks reversal of the judgment for reasons of repeated
instances of ineffective assistance of counsel and prosecutorial misconduct. We address
defendant’s contentions below to the extent appropriate.
I. Exclusion of Third-Party Culpability Evidence.
We turn first to defendant’s challenge to two trial court rulings to exclude
evidence relating to third parties that he contends is exculpatory. Broadly speaking, the
challenged rulings relate to two categories of evidence. The first category relates to
evidence of threats Alonzo allegedly received from unidentified individuals and then
reported to police before she disappeared. Defendant sought to admit this evidence to
prove third-party culpability and, alternatively, to impeach testimony elicited from
Alonzo’s daughter, Terresa, denying that her mother had been threatened. The second
category relates to evidence that an unidentified person used Alonzo’s EBT card shortly
14
Brady v. Maryland (1963) 373 U.S. 83.
15
after her disappearance, which defendant also sought to admit to prove third-party
culpability. The applicable law is as follows.
Where, as here, a defendant seeks to admit third-party culpability evidence, the
evidence is assessed under Evidence Code section 352 to determine whether its probative
value is substantially outweighed by the risk that its admission would result in undue
prejudice, confusion or consumption of time. In performing this assessment, the basic
issue presented for the court is whether the excluded evidence is “ ‘capable of raising a
reasonable doubt of [the] defendant’s guilt.’ ” (People v. Cudjo (1993) 6 Cal. 4th 585,
609 [probative value outweighs prejudice where third-party culpability evidence suffices
to raise reasonable doubt as to guilt], quoting People v. Hall (1986) 41 Cal. 3d 826, 829.)
Thus, as the California Supreme Court explains this standard, where there is “direct or
circumstantial evidence linking the third person to the actual perpetration of the crime,”
the third-party culpability evidence should be admitted. Where, however, such evidence
proves “mere motive or opportunity to commit the crime in another person, without
more,” it is properly excluded as incapable of raising a reasonable doubt as to the
defendant’s guilt. (People v. Hall, supra, 41 Cal.3d at p. 833; see also People v. Green
(1980) 27 Cal. 3d 1, 22 [third-party culpability evidence tending to exonerate a defendant
is admissible only if it constitutes “substantial evidence tending to directly connect that
person with the actual commission of the offense”], overruled on another ground in
People v. Martinez (1999) 20 Cal. 4th 225, 239.) On appeal, a trial court’s decision to
admit or exclude third-party culpability evidence is reviewed, like other evidence, for
abuse of discretion. (People v. Elliott (2012) 53 Cal. 4th 535, 581.)
1. Third-Party Threats Received by Alonzo.
Turning to the first category of evidence, relating to third-party threats received by
Alonzo, the record reflects that, in November 2004, about three weeks before she
disappeared, Alonzo filed two separate police reports stating that she had twice been
threatened by individuals warning her that, if her son, Tyrone, testified in an upcoming
16
murder trial, she could be harmed.15 The first police report made by Alonzo on
November 8, 2004, stated that a man approached her on November 6, 2004, asked where
Tyrone was, and then slapped her in the face before ordering her to tell him not to appear
in court. A few hours later on November 8, 2004, Alonzo made a second police report,
stating that, about ten or fifteen minutes earlier, outside her house, a woman had
brandished a firearm at her. A few days later, Alonzo filed a request with the Alameda
County Victims of Violence Coordinator for payment of relocation expenses. It appears
her application was or would have been granted by this agency.
In seeking admission of this evidence, defendant argued below, as he does here,
that it is relevant to prove someone other than him was responsible for Alonzo’s death or
disappearance – to wit, individuals seeking to prevent her son from testifying at a murder
trial. Defendant further argues this evidence is relevant to prove Alonzo fled the area in
fear of these individuals with intent to disappear and may not have been murdered at all.
Alternatively, he argues the evidence was admissible to cross-examine Officer Bukala
regarding whether he properly investigated the case by following up on the threats
documented in Alonzo’s police reports.16
15
Alonzo’s son, Tyrone, had been a victim of a drive-by shooting in April 2004 that
resulted in the death of one of his friends. He was subsequently served with a subpoena
to testify at the suspect’s murder trial.
16
In a new, but related, variation of his argument at trial, defendant insists on appeal
that the police report evidence is probative of Alonzo’s state of mind and, in particular,
her motive to flee the area, and that his trial counsel rendered ineffective assistance by
failing to pursue this theory when seeking admission of this evidence at trial. He thus
acknowledges his trial counsel’s failure to raise a valid objection. As the record reflects,
however, defense counsel raised several alternative grounds in seeking to admit this
evidence, including that the evidence is admissible to prove third-party culpability, as
spontaneous statements by Alonzo, or to cross-examine the investigating officers
regarding the scope of their investigation. In asserting these various grounds, defense
counsel made clear to the trial court that he considered this evidence “the most critical
thing about this case” given his defense that defendant was not responsible for Alonzo’s
disappearance or death. The court, however, refused to admit the evidence, reasoning
that, “generally,” the case law “almost requires the defense to do their own investigation
on who committed the murder and come up with a specific person.” Given this record,
we conclude defense counsel’s failure to separately raise Alonzo’s state of mind as a
17
The trial court excluded this evidence, reasoning that, under California law, “you
have to have basically a specific person who had the opportunity, the motive. I mean you
don’t have to, but that’s generally what the cases say. . . . [The law] almost requires the
defense to do their own investigation on who committed the murder and come up with a
specific person,” citing People v. Hall, supra, 41 Cal. 3d 826. Nevertheless, the trial court
did permit defense counsel to cross-examine Sergeant Longmire, the homicide detective,
regarding his awareness of Alonzo’s November 2004 police reports. Defense counsel
was also permitted to elicit testimony from Sergeant Longmire that Alonzo made the
reports and applied for relocation money from a county agency supporting victims of
violent crimes. However, pursuant to the court’s in limine ruling, defense counsel could
not question Sergeant Longmire regarding the substance of Alonzo’s reports or her
reasons for seeking relocation funds.
In addition, defense counsel questioned Alonzo’s daughter, Terresa, about these
threats. During Terresa’ cross-examination, defense counsel elicited testimony that
Terresa did not believe her mother’s request for relocation funds had anything to do with
any threats made against her, and that Terresa had no personal knowledge of her mother
being threatened. However, pursuant to the trial court’s ruling, defense counsel could not
then impeach Terresa with the police reports indicating Alonzo was threatened.
In assessing the excluded evidence for purposes of appeal, the law requires us to
decide whether it is “ ‘capable of raising a reasonable doubt of [the] defendant’s guilt,’ ”
and whether, under Evidence Code section 352, the probative value of the evidence is
substantially outweighed by its prejudicial value. (People v. Cudjo, supra, 6 Cal.4th at
p. 609, quoting People v. Hall, supra, 41 Cal.3d at p. 833.) In doing so, we keep in mind
the evidence must go beyond proving mere motive or opportunity to commit the crime;
basis to admit the evidence is excusable. Simply put, given that the trial court had
already rejected several arguments raised by defense counsel and had clearly decided the
evidence would not come in, we conclude another objection to its exclusion, this time on
the basis of state of mind, would likely have been futile. (See People v. Lucas (1995) 12
Cal. 4th 415, 457.)
18
rather, there must be direct or circumstantial evidence linking the third person or persons
to perpetration of the crime. (People v. Hall, supra, 41 Cal.3d at p. 833.)
Applying this standard to the facts at hand, we begin with an undeniable fact: This
case is quite unique. As mentioned above, neither the victim’s body nor the murder
weapon was ever found, leaving a plethora of unanswered questions regarding her
disappearance and death. In fact, there is no direct evidence that Alonzo is dead, much
less direct evidence of the cause of her death. Rather, the record reflects she disappeared
one day, never to be seen or heard from again.
At the same time, the evidence of defendant’s guilt is mostly, if not entirely,
circumstantial. Defendant’s purported admission of guilt came from the mouth of, not
just a career felon, but someone who admittedly distorts the truth to further his own self
interests. And defendant’s motive to kill Alonzo was never pinned down.17 There is
evidence of defendant behaving oddly after Alonzo disappeared – including very nervous
interactions with police and haphazard cleaning and construction work on his house
immediately after her disappearance. And there is evidence of bloodstains in the house,
including stains consistent with Alonzo’s DNA in clothing found in the laundry room.
And there is evidence of volatility in their relationship, including evidence that defendant
was verbally and physically abusive toward her on at least one occasion when, according
to her neighbor, defendant grabbed her arm and said, “bitch, get in the car.” However,
there is no evidence that defendant had ever caused her physical injury, or that she feared
he would.
Thus, while under ordinary circumstances, the probative value of evidence that a
third party made a threat or had reason to kill the victim is often substantially outweighed
by the prejudicial impact of such evidence, in this case, we conclude the probative-
prejudice scale strikes a different balance. (See People v. Hall, supra, 41 Cal.3d at
p. 834.) Given the sheer number of unknowns regarding the nature of Alonzo’s
disappearance and death, the third-party culpability evidence in this case – consisting of
17
There is some evidence that defendant may have owed or promised Alonzo
money.
19
multiple third-party threats that Alonzo believed related to her son having been
subpoenaed at a murder trial and contemporaneously reported to police – has particular
relevance and materiality that suffices to outweigh any risk of undue delay, prejudice, or
confusion arising from its admission. (See Evid. Code, § 210 [relevant evidence is that
which has any tendency in reason to prove or disprove a disputed material fact].)
Moreover, the evidence is probative on the very issue at the heart of the defense – to wit,
whether someone besides defendant caused Alonzo’s death or disappearance.
Significantly, the excluded evidence reflects that, at the time of Alonzo’s disappearance,
Alonzo was in fact fearful; yet, the fear she expressed to others was not fear of defendant,
but fear of these individuals who had threatened her. Under these circumstances, we
conclude a reasonable juror could doubt defendant’s guilt on the basis of this evidence.
In reaching this conclusion, we reject several arguments put forth by the
prosecution in seeking affirmance of the trial court’s ruling. First, the People argue this
evidence is merely indicative of third-party motive, not third-party culpability, and thus is
insufficient to warrant its admission. In support of this contention, the People point to
their pre-trial offer of proof indicating Alonzo could not describe or identify the male
who allegedly threatened and slapped her on November 6, 2004, and that, according to
Alonzo’s son, Tyrone, when he chased down the woman who threatened Alonzo with a
gun in front of their house on November 8, 2004, this woman apologized and showed
him her gun was plastic. Alonzo’s son also denied receiving any threats relating to the
murder trial for which he was ordered to testify. The prosecution’s offer of proof further
states that both Alonzo’s son and the claims specialist who reviewed her application for
relocation fees believed Alonzo fabricated being threatened to qualify for the funds.18
Consistent with this offer of proof, Terresa testified that her mother did not receive any
threats, that she would know if her mother had been threatened, and that her mother’s
18
According to the claims specialist, Alonzo made the police reports within a week
of being advised by the county that she would not qualify for the funds unless her son’s
life or her own life was in actual danger.
20
request for relocation funds had nothing to do with threats but, rather, with her general
worry about neighborhood safety.19
We agree with the prosecution the facts set forth in its offer of proof call into
question the credibility of Alonzo’s police reports. However, the evidence is also
relevant to the substantive issue of whether someone other than defendant murdered or
caused the disappearance of Alonzo. “As Wigmore observed, ‘if the evidence is really of
no appreciable value no harm is done in admitting it; but if the evidence is in truth
calculated to cause the jury to doubt, the court should not attempt to decide for the jury
that this doubt is purely speculative and fantastic but should afford the accused every
opportunity to create that doubt.’ (1A Wigmore, Evidence (Tillers rev. ed. 1980) § 139,
p. 1724.)” (People v. Hall, supra, 41 Cal.3d at p. 834. See also People v. Alcala (1992)
4 Cal. 4th 742, 790 [where defendant was convicted of kidnapping and murdering a young
girl, the trial court erred in excluding testimony under section 352 from a witness who
claimed to have seen the girl on a certain day, thereby raising the possibility that another
person killed her, because: “Although the court was vested with wide discretion in
determining the relevance and weighing the prejudicial effect of proffered evidence
against its probative value [citation], the circumstance that [the witness’s] testimony
readily was subject to impeachment did not afford the court a legitimate basis for
excluding this evidence”].)20 Thus, we disagree the prosecution’s showing warrants
19
Nor could Officer Bukala find any link in his investigation between Alonzo’s
disappearance and her son’s witnessing the murder.
20
As the prosecution notes, defense counsel elicited Terresa’s testimony that she was
unaware of any threats received by her mother, that she would know if her mother had
been threatened, and that her mother’s request for relocation funds had nothing to do with
any threats. Defendant nonetheless complains that his attorney was thereafter precluded
by the trial court’s in limine ruling from confronting Terresa with the evidence that
Alonzo filed the police reports stating that she had twice been threatened. Regardless of
whether defense counsel “invited” prejudice by eliciting this testimony in light of the trial
court’s ruling to exclude the police report evidence, the fact remains that the jury should
have been permitted to weigh Terresa’s testimony that Alonzo was not threatened against
the evidence that Alonzo reported two threats to the police. (See Evid. Code § 780, subd.
(i) [“Except as otherwise provided by statute, the court or jury may consider in
21
exclusion of the police reports from trial.21 As the California Supreme Court cautions,
“trial courts [must] avoid hasty conclusions that third-party-culpability evidence is
‘incredible’; this determination, we have affirmed, ‘is properly the province of the jury.’
(People v. Hall, supra, 41 Cal.3d at p. 834.)” (People v. Cudjo, supra, 6 Cal.4th at p. 610
[holding the trial court abused its discretion in excluding highly probative and highly
necessary third-party culpability evidence after concluding “that doubts about [the
witness’s] credibility, though reasonable and legitimate, did not provide a sufficient basis
to exclude his testimony”].) The California Supreme Court also cautions that “inquiry
into the admissibility of [third-party culpability] evidence and the balancing required
under section 352 will always turn on the facts of the case . . . [and] courts must weigh
those facts carefully.” (People v. Hall, supra, 41 Cal.3d at p. 834.) Here, for all the
reasons stated above, we believe the exceptional facts of this case require admission of
this third-party culpability evidence.
Moreover, we disagree with the prosecution that the California Supreme Court
case, People v. Edelbacher (1989) 47 Cal. 3d 983, dictates a different result. There, the
defense sought to introduce evidence that the murder victim had been hanging around
“Hells Angel-type people” and had sought several times to buy marijuana. The
reviewing court upheld the trial court’s exclusion of this evidence, explaining that, at
most, the excluded evidence demonstrated a possible motive for the victim’s murder; “[a]
fortiori, evidence showing only a third party’s possible motive is not capable of raising a
reasonable doubt of a defendant’s guilt and is thus inadmissible.” (Id. at pp. 1017-1018
determining the credibility of a witness any matter that has any tendency in reason to
prove or disprove the truthfulness of his testimony at the hearing, including but not
limited to . . . [¶] . . . [¶] The existence or nonexistence of any fact testified to by him”].)
21
The People also argue Alonzo’s police reports are inadmissible hearsay.
However, as defendant notes, Alonzo’s statements are probative of her fearful state of
mind at the time of her disappearance, and thus would not be made inadmissible by the
hearsay rule pursuant to Evidence Code section 1250. Alternatively, Alonzo’s second
police report, in which she stated that, just minutes earlier, a women had brandished a
gun at her appears to be admissible as a spontaneous statement pursuant to Evidence
Code section 1240.
22
[explaining the third-party culpability evidence must “link” the third party to the
commission of the relevant crime].) Our case is distinguishable from People v.
Edelbacher in significant ways. First, contrary to that case, there is evidence of an actual
motive in this case by the third-party individuals – to wit, to prevent her son from
testifying at an upcoming murder trial. In addition, we have the fact that the alleged
third-party threats occurred within just weeks of Alonzo’s mysterious disappearance, a
temporal proximity adding probative value to the excluded evidence. (Cf. People v.
Bradford (1997) 15 Cal. 4th 1229, 1325 [“[the victim’s] statements that she previously
had been in fear of ‘a man’ clearly were insufficient to link someone other than defendant
to the actual perpetration of [her] murder”].) And finally, we have the fact that these
threats were contemporaneously documented in police reports filed by Alonzo, an
information source generally deemed reliable. Thus, the People’s authority does not
sway us from the view that this evidence suffices to raise a reasonable doubt as to
defendant’s guilt, such that the jury should have been permitted to consider it. (See
People v. Jackson (1991) 235 Cal. App. 3d 1670, 1679 [“ ‘[A] defendant’s due process
right to a fair trial requires that evidence, the probative value of which is stronger than
the slight-relevancy category and which tends to establish a defendant’s innocence,
cannot be excluded on the theory that such evidence is prejudicial to the prosecution’ ”].)
Finally, we conclude the trial court’s erroneous exclusion of this third-party
culpability evidence was prejudicial to defendant. To summarize what we have just
discussed at length, exclusion of this evidence deprived defendant of the opportunity to
demonstrate to the jury that, around the time of Alonzo’s disappearance, other individuals
with wholly distinct motives (to wit, preventing her son from testifying in an unrelated
murder case) were threatening to harm her. The excluded evidence tended to prove that
Alonzo may have been killed by one of these individuals or their associates, or that she
disappeared on her own volition out of fear of these individuals. Not only are these
theories plausible, the excluded evidence upon which they are based was memorialized
in official police reports, an ordinarily reliable information source. And while the
prosecution is quick to note there is evidence Alonzo may have falsified or at least
23
exaggerated these police reports in order to secure relocation funds, as stated above, this
conflicting evidence should have been left for the jury to sort out. This is particularly
true in light of the highly circumstantial nature of this case, where, as mentioned earlier,
no body was ever found and the only direct evidence of guilt came in the form of
statements by Fluker, a career felon who admittedly manipulated the truth to serve his
own interests. The fact that the jury deliberated for three days before reaching a guilty
verdict, even without this evidence, reflects what a close case this was.
Thus, in light of all of these relevant circumstances, we are left to conclude that it
is reasonably probable a result more favorable to defendant would have been reached in
the absence of the trial court’s error in excluding this evidence. (People v. Watson (1956)
46 Cal. 2d 818, 837; see also People v. Hall, supra, 41 Cal.3d at p. 836 [applying the
People v. Watson standard in assessing prejudice from the wrongful exclusion of third-
party culpability evidence].) 22 Accordingly, reversal for new trial is warranted.
22
Defendant relies upon Chapman v. California (1967) 386 U.S. 18, 24 (Chapman),
to argue that, where exclusion of evidence violates a defendant’s right under the United
States Constitution to present a defense, reversal is required unless the prosecution proves
the error harmless beyond a reasonable doubt. However, as the California Supreme
Court has explained, in the vast majority of cases involving a defendant’s challenge to
exclusion of evidence, the constitutional right to present a defense is not implicated:
“ ‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on
the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and
intrinsic power to exercise discretion to control the admission of evidence in the interests
of orderly procedure and the avoidance of prejudice. [Citations.] . . . [T]his principle
applies perforce to evidence of third-party culpability . . . .’ (People v. Hall, supra, 41
Cal.3d at pp. 834-835.) [¶] It follows, for the most part, that the mere erroneous exercise
of discretion under such ‘normal’ rules does not implicate the federal Constitution. Even
in capital cases, we have consistently assumed that when a trial court misapplies
Evidence Code section 352 to exclude defense evidence, including third-party-culpability
evidence, the applicable standard of prejudice is that for state law error, as set forth in
People v. Watson (1956) 46 Cal. 2d 818, 836 [299 P.2d 243] (error harmless if it does not
appear reasonably probable verdict was affected).” (People v. Cudjo, supra, 6 Cal.4th at
pp. 610-611.) Accordingly, we reject defendant’s argument that Chapman applies.
24
2. Third-Party Use of Alonzo’s EBT Card.
Turning now to the second category of third-party culpability evidence, relating to
someone’s use of Alonzo’s EBT card after she disappeared, the relevant record is as
follows. Officer Bukala received information during his missing-person investigation
from an employee at Captain’s Liquors, a store frequented by both Alonzo and defendant,
that a “male black, five-ten with dreadlocks” used what he believed was Alonzo’s EBT
card at the store in early December 2004.23 This employee, who had returned to his
native country of Yemen and could not be reached by the time of trial, told Officer
Bukala that he recalled seeing this man and Alonzo together in the past. Below,
defendant argued this evidence was admissible to prove third-party culpability, as well as
to counter the prosecution’s evidence that Alonzo’s EBT card was used shortly after her
disappearance and that a person with knowledge of an EBT card PIN number could
access money on the card or check its balance without actually possessing the card.24
The trial court excluded the evidence as “too vague,” while permitting defense counsel to
question Officer Bukala more generally regarding whether he received and pursued
information that Alonzo’s EBT card was used after she disappeared.
Applying the above-stated rules governing third-party culpability evidence, we
find no grounds for disturbing the trial court’s ruling to exclude this evidence, as it is
insufficient to raise a reasonable doubt as to defendant’s guilt. (People v. Hall, supra, 41
Cal.3d at p. 833.) The trial court could reasonably conclude that this evidence is too
vague and circumstantial to carry much probative weight, while, at the same time, that its
admission would carry significant risk of engendering undue prejudice and confusion.
Not only is the store clerk in Yemen and unavailable to testify (raising hearsay concerns),
the information he purportedly gave Officer Bukala is not clearly linked to Alonzo’s
23
Defendant is a white man without dreadlocks.
24
The court rejected defendant’s argument that testimony from prosecution witness,
Roberta O’Neill, a benefits specialist with the Alameda County Social Services Agency,
that someone could access money or balance information on Alonzo’s EBT card without
having possession of her card opened the door to evidence that another man was seen
using her card after she disappeared.
25
murder. Rather, the record merely reflects the clerk believed the EBT card used by the
dreadlocked man may have been Alonzo’s card because of a crack in it, yet he did not
actually verify the name on the card. At most, this information of the possible use of
Alonzo’s card by someone other than defendant may suggest a potential motive or
opportunity to harm Alonzo; however, as stated above, “[a] fortiori, evidence showing
only a third party’s possible motive is not capable of raising a reasonable doubt of a
defendant’s guilt and is thus inadmissible.” (People v. Edelbacher, supra, 47 Cal.3d at
pp. 1017-1018 [explaining the third-party culpability evidence must “link” the third party
to the commission of the relevant crime].)
In any event, even assuming for the sake of argument this evidence should have
been admitted, we would nonetheless find no resulting harm. As mentioned above, the
jury heard evidence that several balance inquiries were made on Alonzo’s EBT card after
her disappearance, and that Officer Bukala investigated the complete transaction histories
of both Alonzo’s and defendant’s EBT cards, but was unable to generate any significant
leads. In light of these facts, and given the vagueness surrounding the store clerk’s report
of having seen the dreadlocked individual use a cracked EBT card that he believed
resembled Alonzo’s card, we conclude it is not reasonably probable a result more
favorable to defendant would have been reached had this evidence been admitted.25
(People v. Watson, supra, 46 Cal.2d at p. 837; see also People v. Hall, supra, 41 Cal.3d at
p. 836 [applying the People v. Watson standard in assessing prejudice from the wrongful
exclusion of third-party culpability evidence].)
II. Other Issues Likely To Occur On Retrial.
In view of our conclusion that reversal is necessary based upon the trial court’s
prejudicial error in excluding evidence of third-party threats received by Alonzo, we need
not discuss at length all of defendant’s remaining contentions on appeal. Instead, we
address only those likely to occur on retrial.
25
Our conclusion in this regard is without prejudice to defendant’s right to seek
admission of this evidence on retrial, should additional grounds for establishing its
relevance become apparent.
26
A. Restrictions on Defendant’s Cross-Examination of Patrice Fluker.
Defendant first challenges as prejudicial error certain restrictions the trial court
imposed with respect to his right to cross-examine Fluker, the jailhouse informant who
testified that defendant admitted killing Alonzo and offered to pay him to provide false
testimony about having seen her on Thanksgiving Day 2004.
The relevant law is not in dispute. “[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form of bias on the part of
the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.’ [Citation.]”
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) However, at the same time, “trial
judges retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant. And as we observed earlier this Term, ‘the
Confrontation Clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the defense
might wish. [Citation.]” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679.) Thus,
cross-examination is generally deemed sufficient unless “[a] reasonable jury might have
received a significantly different impression of [the witness’s] credibility had . . . counsel
been permitted to pursue his proposed line of cross-examination.” (Id. at p. 680.)
In this case, the trial court imposed the following restrictions on defense counsel’s
cross-examination of Fluker. First, the trial court barred defense counsel from asking
Fluker whether he had been arrested for murder. Second, the court barred him from
asking Fluker whether he continued to sell narcotics in or after 2009. Third, the trial
court limited inquiry into the details of Fluker’s 13 arrests that occurred after defendant’s
preliminary hearing. And, finally, the trial court barred defense counsel from inquiring as
to whether deputy district attorney Casey Bates had provided favorable testimony at
Fluker’s parole hearing in exchange for his testimony in this case. According to
27
defendant, these restrictions impermissibly infringed upon his constitutional right of
confrontation. We disagree.
First, with respect to the ruling barring defense counsel from asking Fluker
whether he had been arrested for murder, as the People note, defense counsel made no
offer of proof demonstrating this highly inflammatory fact was true. Moreover, while a
defendant’s prior felony conviction is generally admissible as impeachment evidence
(Evid. Code, § 788), the same is not true for a defendant’s prior felony arrest. In any
event, the record makes clear that Fluker’s lengthy and serious criminal history was the
subject of extensive questioning by counsel. Among other things, Fluker was asked
about the facts that he: (1) had been in prison for at least 20 of the last 27 years; (2) had
been arrested about 100 times; (3) was affiliated with the 415 gang; (4) was convicted on
five counts of robbery before his 20th birthday, several counts of which involved his use
of a gun; (5) after serving time for these robberies, was convicted of selling cocaine;
(6) after serving time for selling cocaine, was convicted of assault with a deadly weapon;
(7) continued to sell drugs at least through 2008; (8) was convicted of dissuading a
witness; (9) had about 19 aliases and often gave false names during arrests to avoid
detection on warrants; and (10) was a longtime alcoholic and drug addict who smoked
cocaine in 2004.
Further, with respect to the restrictions placed on Fluker’s cross-examination
regarding his involvement in the narcotics trade in and after 2009, defendant disregards
that the following questions were in fact permitted. Among other things, defense counsel
asked whether Fluker had sold drugs “since 2004” (to which Fluker responded, “Yes”),
and whether he had sold drugs in 2005, 2006, 2007 and 2008 (to which Fluker responded,
“Probably”). It was not until this point that the prosecutor successfully objected on
relevance grounds to defense counsel’s further inquiries into whether Fluker sold drugs in
2009 and when he stopped selling drugs. However, given that the jury was clearly
exposed to a wealth of testimony regarding Fluker’s drug dealing, and given the lack of
relevance of his drug dealing beyond the general issue of credibility, we conclude the
trial court’s ruling was neither erroneous nor prejudicial. (See People v. Burgener (1986)
28
41 Cal. 3d 505, 525 [trial court has discretion to exclude marginally relevant evidence
where its probative value is outweighed by the risk of necessitating an undue
consumption of time], overruled on other grounds in People v. Reyes (1998) 19 Cal. 4th
743, 756.)
Next, addressing the trial court’s limitations on questioning Fluker on the details
of his 13 post-preliminary-hearing arrests, defendant claims it precluded him from
exposing an “unexplained pattern of leniency” by law enforcement towards Fluker.26
However, defendant’s argument ignores that his counsel was granted permission by the
trial court to discuss the details of Fluker’s arrests with his parole officer, even though he
was not entitled to the actual arrest reports. Defense counsel was also permitted to cross-
examine Fluker regarding whether he had received any “inducements or incentives” for
cooperating with the prosecution in this case. Indeed, Fluker’s cross-examination
revealed the following facts suggestive of bias: (1) Bates granted Fluker’s request for a
photograph of the deceased mother of his children; (2) Bates granted Fluker’s request to
be placed in a witness relocation program subject to the requirement that he testify
truthfully and obey all laws; (3) Fluker had violated the law since his agreement with
Bates regarding his placement in the witness relocation program; (4) Bates granted
Fluker’s request to testify on his behalf at a parole hearing; (5) he later wrote Bates to
thank him for testifying at his parole hearing and, in this letter, suggested that his
testimony helped him get a shorter parole revocation term; (6) he wrote Bates to tell him
that he would do what was needed to get into the witness relocation program, including
altering the truth and compromising his integrity; and (7) he then wrote Bates again,
stating: “If by the time I’m released if your office isn’t prepared to ensure my safety,
don’t risk calling your case because I assure you I will stomp you so badly he’ll walk.”
Given this record, the trial court’s imposition of some limits on counsel’s ability to
explore Fluker’s potential bias was wholly reasonable. (See Delaware v. Fensterer
26
The court also sustained the prosecution’s objections to questions as to whether
Fluker violated probation between his first and second prison terms, or was arrested after
his release from prison after defendant solicited his testimony.
29
(1985) 474 U.S. 15, 20 [“the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish”].)
And, similarly, in challenging the trial court’s decision to bar defense counsel
from inquiring as to whether Bates provided favorable testimony at Fluker’s parole
hearing in exchange for his testimony in this case, defendant ignores that Fluker was in
fact questioned on whether Bates provided helpful testimony at his parole hearing.
Indeed, he readily admitted this fact. While it is correct defense counsel was not
permitted to directly ask whether this helpful testimony was in exchange for Fluker’s
testimony in this case, as the record above indicates, defense counsel’s cross-examination
cannot be deemed constitutionally inadequate, particularly where Fluker himself admitted
mixing fact and fiction “if it’s required”; lying to the investigator when telling him the
story he had concocted with defendant (to wit, that he had seen Alonzo on November 24
or 25, 2004); and possessing the ability to lie easily in certain situations. (See Delaware
v. Fensterer, supra, 474 U.S. at p. 20.)
Thus, in light of the by-all-means extensive examination into Fluker’s criminal
background, his general views on truthfulness and, more specifically, telling the truth
under oath, and his reasons for cooperating with the prosecution in this case, we reject
defendant’s Sixth Amendment challenges to the limitations placed on Fluker’s cross-
examination. Indeed, the essence of defendant’s argument on this issue is that, had the
jury heard the excluded evidence, it “would have had a drastically different view of
Fluker’s credibility.” However, as the record from above makes painfully clear, the jury
already had myriad – indeed, undisputed – reasons to discredit Fluker’s testimony,
including his admitted willingness to lie under oath for personal advantage, his lifelong
flouting of the law, and his general disrespect of legal and societal institutions. We are,
thus, at a loss as to understand how any of the excluded evidence, whether viewed
separately or collectively, could have “drastically” changed the jury’s impression of this
witness. (See People v. Quartermain (1997) 16 Cal. 4th 600, 624 [the trial court’s ruling
to bar cross-examination of a witness regarding his bribery of two judges in other
30
proceedings did not violate the confrontation clause where the witness’s credibility had
already been extensively impeached, including the witness’s admissions of numerous
prior acts perjury, bribery and/or coaching of others to commit perjury, and extensive
involvement in the drug trade].) No grounds therefore exist for disturbing the trial
court’s decisions.
B. The Trial Court’s Rulings on Defendant’s Claims of Brady Error.
In a related argument, defendant contends the trial court’s refusal to order the
prosecution to disclose certain evidence relating to Fluker’s post-preliminary hearing
arrests (to wit, complete law enforcement records of his parole violation history)
constitutes reversible error under Brady v. Maryland (1963) 373 U.S. 83 (Brady). Under
Brady, “suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” (Id. at p. 87.) Here,
defendant claims he was entitled to information regarding the details of Fluker’s arrests
because, if any of these arrests involved crimes of moral turpitude, they could be used to
impeach Fluker or to prove he was shown “obvious leniency” from the district attorney’s
office based on his willingness to testify.27
California law is clear, however, that “ ‘the prosecution has no general duty to
seek out, obtain, and disclose all evidence that might be beneficial to the defense’
[citation], since ‘the Constitution is not violated every time the government fails or
chooses not to disclose evidence that might prove helpful to the defense.’ [Citation.]
27
In response to a defense request, the prosecution agreed to provide a synopsis of
Fluker’s parole history. The prosecutor thereafter represented to the court that defense
counsel had been given a complete history of Fluker’s in-custody and out-of-custody
status from 2007 through the present (February 16, 2012), but that she did not have
access to this information for other counties or non-California facilities. The prosecutor
also represented that, had any of Fluker’s arrests involved crimes of moral turpitude (they
did not), she would have disclosed such fact during discovery. The court ultimately ruled
that Brady had been satisfied, noting that, although defendant was not entitled to all of
Fluker’s arrest records, he could inquire whether Fluker had received any inducements of
incentives in exchange for his testimony.
31
Rather, a [Brady] violation occurs “ ‘only if there is a reasonable probability that, had [it]
been disclosed to the defense, the result . . . would have been different.’ [Citations.] The
requisite ‘reasonable probability’ is a probability sufficient to ‘undermine[] confidence in
the outcome’ on the part of the reviewing court. (In re Sassounian (1995) 9 Cal. 4th 535,
544.)” [¶] “ ‘[Moreover,] [i]n general, impeachment evidence has been found to be
material where the witness at issue “supplied the only evidence linking the defendant(s)
to the crime,” United States v. Petrillo, 821 F.2d 85, 90 (2d Cir. 1987); see also Giglio v.
United States, 405 U.S. [150,] 154-155 [31 L. Ed. 2d 104, 92 S.Ct. [763,] 766 [(1972)]
(Brady violation found where government failed to disclose promise not to prosecute
cooperating witness on whom government’s case against defendant “almost entirely”
depended), or where the likely impact on the witness’s credibility would have
undermined a critical element of the prosecution’s case, see United States v.
Badalamente, 507 F.2d 12, 17-18 (2d Cir. 1974) (same re nondisclosure of “hysterical”
letters that would have had “powerful adverse effect” on witness’s credibility, where that
credibility was “crucial to the determination of [the defendant’s] guilt or innocence”);
cert. denied, 421 U.S. 911 [43 L. Ed. 2d 776, 95 S. Ct. 1565 (1975)].” (People v. Salazar
(2005) 35 Cal. 4th 1031, 1049-1050.)
Thus, “[a]lthough the term ‘Brady violation’ is often broadly used to refer to any
failure on the part of the prosecution to disclose favorable information to the defense, a
true violation occurs only if three components coexist: ‘The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.’ (Strickler v. Greene (1999) 527 U.S. 263, 281-282 . . . .)”
(People v. Uribe (2008) 162 Cal. App. 4th 1457, 1474. See also People v. Superior Court
(Meraz) (2008) 163 Cal. App. 4th 28, 51 [“ ‘the prosecutor will not have violated his
constitutional duty of disclosure unless his omission is of sufficient significance to result
in the denial of the defendant’s right to a fair trial’ ”].)
Here, defendant cannot make this required showing. Even assuming for the sake
of argument that defendant is correct that information regarding Fluker’s 13 post-
32
preliminary-hearing arrests would have revealed a pattern of leniency toward Fluker by
the prosecution, “[t]he mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of the trial, does not
establish “materiality” in the constitutional sense.” [Citation.]’ [Citations.]” (Meraz,
supra, 163 Cal.App.4th at p. 52.) “As we have described it in terms of posttrial analysis
of nondisclosure, ‘ “[m]ateriality . . . requires more than a showing that the suppressed
evidence would have been admissible [citation], that the absence of the suppressed
evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence
to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation].
A defendant instead ‘must show a “reasonable probability of a different result.” ’
[Citation.]’ [Citation.]” (Meraz, supra, 163 Cal.App.4th at p. 52 [italics added].) In this
case, there is no reasonable probability of a different result. As explained above in
connection with defendant’s challenges to the restrictions placed on Fluker’s cross-
examination, the record here is full of evidence regarding Fluker’s lack of credibility and
his personal interest in assisting the prosecution in hopes of obtaining leniency in his own
case. (Pp. 26-31, ante.) Moreover, although defense counsel was not granted access to
the requested law enforcement records, he was permitted to question Fluker’s parole
officer about his post-preliminary-hearing police records and to subpoena his state prison
records.
More generally, defense counsel was permitted to question Fluker at length
regarding any incentives or inducements he received from the prosecution in exchange
for his testimony. As stated above, Fluker admitted Bates testified favorably at his parole
hearing, a fact disclosed by the prosecution prior to trial. 28 Under these circumstances,
defendant’s claim of Brady error fails for lack of any showing of a reasonable probability
that he would have achieved a better result in this trial had the requested materials about
Fluker been disclosed. (See People v. Salazar, supra, 35 Cal.4th at p. 1050
[“ ‘impeachment evidence has been found to be material where the witness at issue
28
The prosecution had already disclosed materials indicating Bates had provided
helpful testimony to Fluker in his parole hearing.
33
“supplied the only evidence linking the defendant(s) to the crime,” [citations] . . . , or
where the likely impact on the witness’s credibility would have undermined a critical
element of the prosecution’s case”] [italics added].)29 We hasten to add in closing,
however, that our conclusion in this regard is based upon the record in this trial, and is
without prejudice to defendant’s right to seek disclosure of information related to
Fluker’s criminal records, if appropriate, on retrial.
C. Admission of Evidence of Prior Act of Domestic Abuse.
Defendant also contends the trial court committed prejudicial error by permitting
Roderick Stanley, Alonzo’s neighbor, to testify over defense objection regarding an
incident in which he allegedly saw defendant grab Alonzo by the arm and tell her, “Bitch,
get in the car.” Stanley explained that defendant “just grabbed” Alonzo by the arm and
“put her in his car,” while Alonzo was fussing “like she didn’t want to go.” Stanley
added: “You know, she’s pretty feisty anyway, so it wasn’t easy.” In deciding to admit
this evidence, the trial court denied defense counsel’s pretrial request for a hearing
pursuant to Evidence Code section 402 to determine as a threshold issue whether
Stanley’s testimony was sufficiently reliable to warrant admission.
Generally, all relevant evidence is admissible. (People v. Champion (1995) 9
Cal. 4th 879, 922.) Relevant evidence is that which has any tendency in reason to prove
or disprove any disputed fact material to the outcome of the case. (Evid. Code, § 210.)
“The test of relevance is whether the evidence tends ‘ “logically, naturally, and by
reasonable inference” to establish material facts such as identity, intent, or motive.
[Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance
of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]’
[Citation.]” (People v. Hamilton (2009) 45 Cal. 4th 863, 940.) Moreover, even relevant
evidence may nonetheless be excluded if the trial court finds that its probative value is
29
We also reject defendant’s claim that the trial court erred by not conducting an en
camera review of Fluker’s arrest files for Brady material. The general process for
reviewing a Brady claim identified by the California Supreme Court does not mention,
much less require, such a review (see In re Brown (1998) 17 Cal. 4th 873, 886), and
defendant points to nothing in this case compelling deviation from the standard process.
34
substantially outweighed by its prejudicial effect. (People v. Champion, supra, 9 Cal.4th
at p. 922; Evid. Code, § 352.)
In this case, the testimony from Roderick Stanley was admitted pursuant to
Evidence Code section 1109 (hereinafter, section 1109), which authorizes admission of a
defendant’s prior uncharged act(s) of domestic violence for the purpose of showing a
propensity to commit such crimes. (E.g., People v. Brown (2011) 192 Cal. App. 4th 1222,
1232-1233.) More specifically, where, as here, “ ‘a defendant is charged with a violent
crime and has or had a previous relationship with a victim, prior assaults upon the same
victim, when offered on disputed issues, e.g., identity, intent, motive, etcetera, are
admissible based solely upon the consideration of identical perpetrator and victim
without resort to a “distinctive modus operandi” analysis of other factors.’ (People v.
Zack (1986) 184 Cal. App. 3d 409, 415 [229 Cal. Rptr. 317]; see People v. Hoover (2000)
77 Cal. App. 4th 1020, 1026 [92 Cal. Rptr. 2d 208] [‘Even before the enactment of
[Evidence Code] section 1109, the case law held that an uncharged act of domestic
violence committed by the same perpetrator against the same victim is admissible
. . . .’].)” (People v. Guilford (2014) 228 Cal. App. 4th 651, 661-662.)
However, even if the evidence is admissible under section 1109, the trial court
must still determine, pursuant to Evidence Code section 352, whether the probative value
of the evidence is substantially outweighed by the probability the evidence will consume
an undue amount of time or create a substantial risk of undue prejudice, confusion of
issues, or mislead the jury. (People v. Brown, supra, 192 Cal.App.4th at p. 1233.) As
with other evidentiary rulings (including rulings on foundational matters), the trial court
has broad discretion when making this determination, and we will not disturb the court’s
exercise of discretion on appeal absent a showing that it was exercised in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of justice.
(People v. Brown (2003) 31 Cal. 4th 518, 547; People v. Avitia (2005) 127 Cal. App. 4th
185, 193; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal. App. 4th 1516, 1522-1523.)
Having considered this record, we find nothing arbitrary, capricious, or patently
absurd about the trial court’s admission of the challenged testimony, even in the absence
35
of a pretrial hearing to address the reliability of this testimony. (People v. Avitia, supra,
127 Cal.App.4th at p. 193.) Stanley’s testimony regarding defendant pushing Alonzo and
warning, “Bitch, get in the car,” falls squarely within the confines of section 1109 in that
the testimony described a prior uncharged act of domestic violence by defendant. (See
§ 13700, “(a) ‘Abuse’ means intentionally or recklessly causing or attempting to cause
bodily injury, or placing another person in reasonable apprehension of imminent serious
bodily injury to himself or herself, or another. [¶] (b) ‘Domestic violence’ means abuse
committed against an adult or a minor who is a spouse, former spouse, cohabitant, former
cohabitant, or person with whom the suspect has had a child or is having or has had a
dating or engagement relationship.”) Moreover, his testimony was relevant to at least
two issues ─ to wit, defendant’s state of mind and propensity to commit abuse.30 (See
People v. Brown, supra, 192 Cal.App.4th at p. 1237 [“defendant’s propensity to commit
domestic violence against . . . prior girlfriends who were assaulted, is relevant and
probative to an element of murder, ‘namely, [his] intentional doing of an act with malice
aforethought that resulted in the victim’s death’ ”].)
Defendant insists the trial court should have held a hearing before admitting the
evidence to determine the threshold issue of whether the alleged incident of domestic
abuse even occurred. In doing so, defendant points to several factors undermining the
probative value of Stanley’s testimony, including the fact that Stanley waivered on
whether defendant actually touched Alonzo during the incident and when the incident
occurred. Stanley claimed to have seen the incident “two or three months” before
Alonzo’s November 2004 disappearance, even though he was in jail from August 2004 to
April 2005. He then claimed it occurred “no more than two years before” the 2012 trial,
30
Defendant also argues that section 1109 is unconstitutional because it permits the
jury to infer from a defendant’s prior bad act that he committed the charged offense. This
argument is, of course, a nonstarter. The California Supreme Court, to which we must
defer, has already decided that admission of propensity evidence pursuant to Evidence
Code section 1109 and its counterpart, Evidence Code section 1108, does not violate a
defendant’s rights to due process and equal protection. (See People v. Falsetta (1999) 21
Cal. 4th 903, 915, 921; see also People v. Brown (2000) 77 Cal. App. 4th 1324, 1334.)
36
which would have been several years after her disappearance. In addition, Stanley could
not initially identify defendant in the courtroom. However, despite these facts, the trial
court had discretion to determine in the first instance that Stanley’s testimony was
sufficiently credible to be considered by the jury. (People v. Smith (2007) 40 Cal. 4th
483, 515-516 [“Issues regarding a witness’s credibility are properly left to the jury, and
are not a proper subject of an Evidence Code section 402 hearing”]. See also People v.
Young (2005) 34 Cal. 4th 1149, 1181 [“unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to support a
conviction”].) It is well-established that discrepancies in a witness’s testimony generally
provide no basis for rejecting the trial court’s admissibility determination on appeal.
(People v. Barnwell (2007) 41 Cal. 4th 1038, 1040, 1052 [“Even when there is a
significant amount of countervailing evidence, the testimony of a single witness that
satisfies the [substantial evidence] standard is sufficient to uphold the finding”].) Rather,
in reviewing evidentiary rulings, we must not reweigh the evidence, and we must give the
respondent, as the prevailing party, the benefit of all reasonable inferences drawn from
such evidence. (People ex rel. Lockyer v. R.J. Reynolds Tobacco (2004) 116 Cal. App. 4th
1253, 1257-1258.) “ ‘When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.’[Citations.]” (Id. at p. 1279.)
We thus conclude the trial court acted within the broad scope of its broad
discretion in determining the probative value of Stanley’s testimony outweighed any risk
of undue prejudice resulting from its admission.31 In light of the testimony’s relevance
when viewed in a light most favorable to affirming the judgment, we uphold the trial
court’s decision to admit it. (See People v. Pelayo (1999) 69 Cal. App. 4th 115, 120-121.)
31
Defendant contends the trial court failed to evaluate this evidence pursuant to
Evidence Code section 352, and thereby violated his due process rights. However, we
decline to assume, in the absence of any evidence, that the trial court neglected its legal
duty in this regard. (Ross v. Superior Court (1977) 19 Cal. 3d 899, 913 [reviewing court
must presume the trial court properly followed the law in the absence of contrary
evidence].)
37
And finally, even if we were to assume for the sake of argument that admission of
Stanley’s testimony was erroneous, there is no basis on this record for concluding
defendant was thereby harmed. The testimony was brief, and related to a relatively minor
act of domestic abuse by defendant against Alonzo. As such, there is little, if any,
likelihood that, absent the testimony, defendant would have achieved a better result.
D. Admission of Statements Containing Multiple Layers of Hearsay.
Defendant contends the trial court further committed prejudicial error by admitting
certain multiple-hearsay statements. Specifically, defendant challenges the admission of
testimony by Sergeant Longmire that an unidentified person told him a man named
Darryl White told a man named George Hill that defendant killed Alonzo. In overruling
defense counsel’s multiple-hearsay objection, the trial court instructed the jury that
Sergeant Longmire’s statements were not admitted as evidence of the truth of defendant’s
guilt, but rather as evidence related to his investigation and, in particular, his investigative
decision to show defendant a photograph of Darryl White in order to gauge his reaction.32
Defense counsel thereafter moved for a mistrial, arguing that Sergeant Longmire’s
testimony was “incredibly improper and it was designed only to inflame the jury with
improper multiple levels of hearsay where this officer knows that none of this was borne
out. [¶] [Sergeant Longmire] attempted, according to his reports, to interview Mr. Hill, to
try to find Darryl Walker [sic], to ask George Hill to tape Darryl White — not
Mr. Walker — to see if this could be confirmed. None of that ever came through. To ask
a question about what [his] subsequent conduct was based on four levels of hearsay to
inflame this jury is improper hearsay and I’m asking for a mistrial.”
The trial court denied defense counsel’s request for mistrial after considering
further argument. The court did, however, invite defense counsel to submit a special jury
instruction with respect to Sergeant Longmire’s testimony for its consideration, which
defense counsel does not appear to have done.
32
According to Sergeant Longmire, when defendant saw this photograph, he stated:
“I’m starting to see what this is all about now.”
38
The governing law is not in dispute. Where an objection is raised, unless the
parties stipulate otherwise, hearsay evidence is generally inadmissible at trial subject to
specific statutory exceptions. (Evid. Code, § 1200; Elkins v. Superior Court (2007) 41
Cal. 4th 1337, 1354.) “Under Evidence Code section 1201, where a statement involves
multiple levels of hearsay, each level must satisfy a hearsay exception in order for the
entire statement to be admissible.” (Cruey v. Gannett Co. (1998) 64 Cal. App. 4th 356,
366.) Moreover, in satisfying the hearsay exception, the burden is placed squarely on the
statement’s proponent (to wit, the prosecution). (Ibid.) However, even where hearsay
evidence is erroneously admitted or excluded, such error requires reversal of the final
judgment only if the challenging party establishes that a miscarriage of justice has
resulted. (Cal. Const., art. VI, § 13; Evid. Code, § 353.)
Here, the prosecution contends the challenged testimony by Sergeant Longmire
was properly admitted nonhearsay evidence that was more probative than prejudicial.
“An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the
statement is identified, and the nonhearsay purpose is relevant to an issue in dispute.
(People v. Armendariz (1984) 37 Cal. 3d 573, 585 [209 Cal. Rptr. 664, 693 P.2d 243;
People v. Bunyard (1988) 45 Cal. 3d 1189, 1204-1205 [249 Cal. Rptr. 71, 756 P.2d 795];
see People v. Scalzi (1981) 126 Cal. App. 3d 901, 907 [179 Cal. Rptr. 61 [‘ “one important
category of nonhearsay evidence — evidence of a declarant’s statement that is offered to
prove that the statement imparted certain information to the hearer and that the hearer,
believing such information to be true, acted in conformity with that belief. The statement
is not hearsay, since it is the hearer’s reaction to the statement that is the relevant fact
sought to be proved, not the truth of the matter asserted in the statement.” ’].)” (People v.
Turner (1994) 8 Cal. 4th 137, 189.)
According to the prosecution, Sergeant Longmire’s testimony was admitted, not to
prove its underlying truth, but to prove certain aspects of his investigatory work, such as
the reasonableness and good-faith nature of his decisions to show defendant Darryl
White’s photograph and, more generally, to continue to investigate defendant despite the
lapse in time since Alonzo’s disappearance. (See People v. Samuels (2005) 36 Cal. 4th
39
96, 122) [an out-of-court statement properly admitted to explain the witness’s subsequent
actions].) The prosecution also insists this “non-hearsay evidence” was more probative
than prejudicial for purposes of Evidence Code section 352, reasoning that: “People are
generally familiar with the police receiving tips as part of their investigation, and the jury
was likely to interpret Longmire’s testimony as just that, rather than jumping to the
conclusion that it indicated evidence of guilt that had been withheld from them.”
Having considered the record at hand in light of the governing law, we reject the
prosecution’s reasoning. Evidence that Darryl White told George Hill who told someone
else who then told Sergeant Longmire that defendant killed Alonzo may have been
marginally useful to explain why the detective focused his investigation on defendant
after more than two years passed since her disappearance. However, contrary to the
prosecution’s claim, there is no real suggestion in this case that the police, including
Sergeant Longmire, continued to investigate defendant in connection with Alonzo’s
disappearance for any non-legitimate reason such as “personal animus.” The key issues
were simply whether Alonzo was dead and whether defendant killed her. Sergeant
Longmire’s testimony about what he heard through the grapevine from Darryl White,
when considered for a purpose other than truth, is not significantly probative on these
issues. Moreover, while it may be true that defense counsel’s strategy at trial was to
attack the quality and completeness of Sergeant Longmire’s investigation, we nonetheless
question whether there was any real need by the prosecution to rely on this particular
testimony by Sergeant Longmire in pursuing this strategy. (See People v. Scalzi, supra,
126 Cal.App.3d at p. 907; People v. Livingston (2012) 53 Cal. 4th 1145, 1162-1163.)
Accordingly, we conclude that, even assuming Sergeant Longmire’s testimony
shed some light on the issue of police competence, its probative value was substantially
outweighed by the probability of undue prejudice, or danger of confusing or misleading
the jury. As aptly noted in a well-known evidentiary treatise: “One area where abuse
may be a particular problem involves statements by arresting or investigating officers
regarding the reason for their presence at the scene of a crime. The officers should not be
put in the misleading position of appearing to have happened upon the scene and
40
therefore should be entitled to provide some explanation for their presence and conduct.
They should not, however, be allowed to relate historical aspects of the case, such as
complaints and reports of others containing inadmissible hearsay. Such statements are
sometimes erroneously admitted under the argument that the officers are entitled to give
the information upon which they acted. The need for this evidence is slight, and the
likelihood of misuse great. Instead, a statement that an officer acted ‘upon information
received,’ or words to that effect, should be sufficient.” (2 McCormick, Evidence (7th
ed. 2013) Hearsay, § 249, pp. 193-195.)
Here, while the jury was indeed apprised of the nonhearsay purpose for
introducing this testimony, the fact remains that it was powerfully incriminating while
only marginally probative. Indeed, this evidence, through the vessel of a chain of
unconfirmed statements, directly identified defendant as Alonzo’s killer. Accordingly,
we conclude the trial court’s decision to admit this evidence at trial was wrong.
However, in light of our reversal of this case on other grounds, we need not
determine for purposes of this appeal whether it is reasonably probable the verdict would
have been more favorable to defendant had Sergeant Longmire not testified that an
unidentified person told him that Darryl White told George Hill that defendant killed
Alonzo. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we simply
point out the court’s error in this regard, while reversing the judgment for prejudicial
error in excluding third-party culpability evidence, a matter discussed at length above.
41
DISPOSITION
For the reasons set forth above, the judgment is reversed and the matter is
remanded to the trial court for a new trial in accordance with the conclusions reached
herein.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
42